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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of private advice

Authorisation Number: 4120069103245

Date of advice: 26 September 2019

Ruling

Subject: Section 99A - commissioners discretion

Question

Will the Commissioner exercise the discretion under subsection 99A(2) of the Income Tax Assessment Act 1936 (ITAA 1936) to apply progressive concessional rates of tax as per section 99 of the ITAA 1936?

Answer

Yes.

The Trust consists of property that was transferred to the trustee directly as the result of the death of a person and out of a superannuation fund (per subparagraph 99A(2)(d) and 102AG(2)(c)(v) of the ITAA 1936). After consideration of the relevant factors, the Commissioner is of the opinion that it would be unreasonable that section 99A of the ITAA 1936 should apply in relation to that trust estate in relation to the relevant year of income. Accordingly section 99 of the ITAA 1936 will apply.

This ruling applies for the following periods:

Year ended 30 June 2019

Year ended 30 June 2020

Year ended 30 June 2021

Year ended 30 June 2022

Year ended 30 June 2023

The scheme commences on:

1 July 2018

Relevant facts and circumstances

The Beneficiary was born on XX September 20XX

The Beneficiary is under a legal disability.

The Deceased passed away on XX November 20XX

The Deceased held a superannuation fund.

The Trust was created.

An amount was received from the superannuation fund.

The Beneficiary is not presently entitled to trust income.

Relevant legislative provisions

Income Tax Assessment Act 1936 section 99

Income Tax Assessment Act 1936 section 99A

Income Tax Assessment Act 1936 section 102AG